These TPP safeguards won't protect us from ISDS

Forget footnotes, qualifications and special exemptions - if Australia wants to be safeguarded from investor-state dispute settlements it must reject their presence in the TPP entirely, writes Kyla Tienhaara.

In light of this ongoing uncertainty, it is worth scrutinising the detail of the chapter and in particular the so-called 'safeguards' meant to prevent legitimate regulatory actions taken in the public interest from being challenged in ISDS.

The question that everyone is asking is whether Australia could be faced with another case like the Philip Morris/plain packaging dispute under the terms of the TPP. This is a particularly salient question given that the TPP would be the first investment treaty that Australia would have with the US - home of the most litigious foreign investors.

A close reading of the draft suggests that the TPP investment chapter, while being substantially better written than bilateral investment treaties (BITs) drafted in the 1980s and 1990s, cannot be said to 'safeguard' domestic regulatory authority. The provisions in the chapter largely follow an American model that has proven insufficient to prevent investors from challenging environmental regulation.

For example, the draft TPP has a standard clause on 'expropriation' which covers direct takings (when a government seizes property) as well as indirect or regulatory takings (when a government's actions have an impact on an investment but nothing is directly seized).

An additional clause states that non-discriminatory public policy measures will not be considered to be an expropriation except "in rare circumstances". This caveat leaves the door open to investors and creative lawyers to argue that their case is such a rare circumstance. This is one of the issues currently being argued in an ISDS case concerning Costa Rica's limitations on development within a national park - measures that were taken to protect an endangered species.

A better model to follow would be one found in, for example, several Turkish BITs, in the Common Market for Eastern and Southern Africa (COMESA) agreement, and the draft 2015 Model BIT of India that simply states that non-discriminatory regulatory measures are not considered expropriations. Full stop.

Another ISDS case that has just been decided against the Government of Canada is illustrative of the problem with the inclusion of the "fair and equitable treatment" standard in the TPP. In the Clayton/Bilcon case (brought under the North American Free Trade Agreement, or NAFTA), the tribunal found that the decision of an independent environmental impact review panel constituted a breach of this standard.

The award in this case is particularly relevant because the TPP's 'safeguard' for the fair and equitable treatment standard is to link it to customary international law. This 'safeguard' exists in the NAFTA context but the tribunal nevertheless found that customary international law in this area has evolved over time and in a manner that is more in line with the investor's interpretation of its meaning than with Canada's.

In a dissenting opinion, Donald McRae (who also sits on the tribunal in the Philip Morris case) argued that the tribunal's decision amounted to a "significant intrusion into domestic jurisdiction and will create a chill on the operation of environmental review panels".

Again, a better model would be to simply exclude the language of "fair and equitable treatment" from the TPP entirely. This is what India and Singapore chose to do when they signed an Economic Cooperation Agreement in 2005 and what India proposes for all its future agreements.

The 2015 Indian draft BIT is also notable for the fact that it excludes any provision on most favoured nation treatment. This standard has been seen as opening a possible loophole by which an investor could demand better treatment provided in another BIT, thereby rendering any 'safeguards' useless. The TPP includes this provision and only safeguards against an investor accessing more favourable procedural standards that determine how an ISDS tribunal operates.

With regard to procedures, there is very little in the way of innovation in the leaked TPP chapter. Many treaties have now mooted the possibility of developing an appellate body. This could bring some degree of consistency to what is currently a highly unpredictable system.

So far it has been all talk and no action, and the leaked chapter demonstrates no initiative in this regard by the TPP negotiators. As a result, regulators will be left in a precarious position, not knowing whether their measures will survive the scrutiny of a tribunal and having no means to challenge a final award.

Overall, the leaked chapter appears very dated, perhaps because the negotiations have dragged on for so long, and meanwhile the world of ISDS has been rapidly evolving.

If ISDS is accepted in the Trans Atlantic Trade and Investment Partnership (TTIP) between the EU and US - something that remains in doubt given the level of public opposition and the objections to the process expressed by key states like Germany - it is likely that the 'safeguards' in it will be far more advanced.

And India's draft model BIT demonstrates that other countries are also moving away from the American model.

Despite rhetoric to the contrary, the Abbott Government is not convinced that the existing safeguards will work. If it was, why would the Australian negotiators be seeking a special health policy exemption from ISDS to protect, for example, the PBS and Medicare? While this is an eminently sensible thing to do, why is environmental policy (or any other area of public interest) not similarly carved out?

At the end of the day, rather than quibbling over footnotes, qualifications and special exemptions, it would be much safer to stick with the previous government's position on ISDS in the TPP and just say no.

Dr Kyla Tienhaara is a research fellow at the Regulatory Institutions Network, ANU College of Asia and the Pacific.

Comments (72)

Comments for this story are closed.

Dave:

26 Mar 2015 4:19:39pm

Thanks Dr Tienhaara, and an even bigger thanks to Wikileaks, proving it's outstanding value once again.

Get on to your local federal MP's, people. Opposition to the Multilateral Agreement on Investment started out with fringe dwellers like Pauline Hanson, then once enough people started asking questions it vanished overnight. This deserves the same treatment from the look of it for pretty similar reasons.

Bram52:

MJMI:

26 Mar 2015 8:47:45pm

I'd like to agree. But given that both major political parties fell over each other in the rush to pass the metadata legislation I don't hold out much hope for common sense and national interests prevailing in the TPP negotiations.

ingenuous:

27 Mar 2015 12:01:00pm

MJMI, yes, neither major party is on the side of the ordinary citizen in recent times. The new mass surveillance law (collecting data overwhelmingly on completely innocent people, entirely to their detriment) shows they are working for others and not us.

The thing that puzzles me is that ISDS works against the power of politicians. Why are they so willing to give up this power? Is it because they already have? Shouldn't they at least try a bit harder to hide the puppet strings that animate them?

You can tell I have no confidence in our government's ability to negotiate the TPP in our interests. Honestly, I wouldn't trust them with a chook raffle at the moment. I just wonder if our government or government-in-waiting (as the opposition styles itself) can ever negotiate anything in our interests, or if they are now permanently compromised.

GreyBags:

MJMI:

26 Mar 2015 8:51:40pm

Don't think the line is all that fine. Corruption in secrecy is what it really is and commercial in confidence is just a big fat lie. Pity we are becoming inured to being told lies - now just a daily occurrence.

bobtonnor:

26 Mar 2015 5:19:14pm

ha, ha, ha, oh, oh my, thats got to be one of he funniest things ive heard all year...hang on are you serious? i mean really serious? next you'll be expecting the people you vote for to make the laws of this land, and where do you think that'll get us eh?

Peter of Melbourne:

26 Mar 2015 6:07:26pm

where would we be bob? the same place as switzerland because i have no interest in pandering to any of the political parties, their pathetic sheeple supporters who wont hold them to account or to the other special interests groups which manipulate our political system for their own benefit

long past time to destroy the power the vested interests have over what should be OUR democracy

if the political parties want to implement a policy ie...- open our borders to countryshoppers or close our borders to countryshoppers- implement a federal tariff on non renewable mined resources- introduce a tax on the air we breathe- legalise dope or implement the death penalty for importersor whatever else they can think of

those policies need to individually be put to the people of this nation to vote on... if they do a decent job of marketing their policies then they will probably get the 75% - 80% voting majority they need to pass each individual one, if not then that policy can and should die the ignominious death it deserves

Mitor the Bold:

26 Mar 2015 8:28:04pm

You're describing direct democracy, where voters get to decide individual policies via a poll, but what we have in Aus is representative democracy where we choose a party to represent our views more generally and which applies this general view to individual issues.

So, for instance, a majority of voters didn't want any funding cuts to education, healthcare, pensions or public broadcasting so we chose a government that represented these views as part of its policy platform to attract votes in the last election. Then it did the exact opposite of what we thought we'd voted for. Do you still feel represented?

Fool us once, shame on them - fool us twice, shame on us. If the TPP is allowed to pass then it will not be to the benefit of voters - this we must now assume as a matter of experience regardless of whatever empty rhetoric we are offered by this government - therefore it must be resisted by the opposition parties. Otherwise, whenever a Bill passes thru the Upper House it will effectively then go to Congress for a final stamp of approval.

When our own democratically elected government wilfully ignores the commitments it made to voters to get elected in the first place then just how effectively can the will of the Australian people be realised when making appeals to Philip Morris, GM, Google or JPMorgan Chase?

Peter of Melbourne:

27 Mar 2015 3:37:36pm

mitor

i am 110% for a direct democracy because the unrepresentative so called democracy which the liberal/labor party have saddled us with is now a proven failure when it comes to managing this nation for the people of this nation

bobtonnor:

26 Mar 2015 9:03:28pm

sorry Peter i was being sarcastic, very sarcastic. I know and you know who pulls the strings, we have just seen a prime example with the likes of twiggy, out there pushing policy and then possibly breaching of anti cartel rules. The bloke has form with anaconda nickel, Tony knows it, everyone else in govt knows it, so what happens? they give Twiggy the opportunity to push policy. I do what i do on this forum, i take the micheal most of the time when i can because sometimes you just have to laugh, well i do because i just cant take them seriously half the time and life is way too short not to (try) see the funny, or riduculous side. You wrote 'those policies need to individually be put to the people of this nation to vote on... if they do a decent job of marketing their policies then they will probably get the 75% - 80% voting majority they need to pass each individual one, if not then that policy can and should die the ignominious death it deserves', i, as far as i have seen am the complete opposite of the polical divide to you but on this i totally agree, it is the politicians jobs to represent their constituants and then their parties, it is we who should hold all of them to account when we are dissatisfied.

Peter of Melbourne:

i believe in our public healthcare system, i believe in the core of our public welfare system as well as in a publicly funded education system

i dont believe the taxpayer should be funding every little minority group or minority interest that comes along.

pre 1980/1990 these people use to raise funds using their own initiative and not by filling out a few forms so they could receive endless taxpayer funded government grants to pursue their own interests

billions upon billions are given over to such causes each year when those same funds could be used in our health and education systems.

virgil:

Headscratcher:

27 Mar 2015 10:56:13am

In the US a lot of them are employed by the corporations BEFORE they enter politics.Same as the legal profession. You've got senior management from the likes of Monsanto now running the FDA and USDA as well etc etc.The corruption stinks to high heaven and that's what they want to bring here through the likes of the TPP.We already have trade arrangements in place.The cornerstone here is the ISDS provisions and its target is regulatory. ie labor markets, environment and patenting regs.

Connie41:

26 Mar 2015 4:51:57pm

I would have thought that the least any company or individual investing and operating in Australia must be required to do is to act within the laws of our country, without large financial compensation for the impacts of these laws on the company. This is what Australian citizens must do. Far form our laws being seen as an opportunity for compensation, flaunting them opens us to prosecution and punishment. The same should apply to anyone or any organisation operating within Australia. A government that hands the power to do otherwise to an un-elected power is arguably a traitor to our country.

Dave:

26 Mar 2015 5:19:13pm

"A government that hands the power to do otherwise to an un-elected power is arguably a traitor to our country."

The Multilateral Agreement on Investment in the late 90's would have allowed companies from one country setting up in other countries to run themselves largely the same way in each country, bypassing a range of local laws such as payment and conditions of workers, environmental protection and consumer law, if I recall it correctly. It collapsed as a result of the world's first substantial online political campaign. Australia was likely to sign but France pulled out and that was the end of the whole thing.

Gordon:

26 Mar 2015 5:55:19pm

I guess it depends if the law came first or second. If the law already exists then some treaty isn't going to suddenly make a company up for compensation. There is a very basic principle that you can't contract outside the law...if a deal is illegal it ain't a deal.

If a new law affects an existing previously legal business the govt is generally obliged to made good the difference anyway. I'm not sure what the fuss is about.

Dave:

26 Mar 2015 7:30:11pm

"There is a very basic principle that you can't contract outside the law"

Generally agreed without problem, the issue is that laws can be invalidated - rare but possible as an issue in contract law - and treaties like this leave these issues open to challenge in legal forums.

kenj:

27 Mar 2015 1:45:06pm

Gordon, the fundamental principle of the TPP is that it surrenders national sovereignty in regard to key elements of how corporations can enter and work within a country. Specifically, the assumption of the Treaty is that all national legislation is to be subordinated to the idea that businesses are allowed to make money and that any action by government that may impinge on that is in breach of the Treaty by default. It is then up to the government to convince an external adjudicator whose only Treaty standard is whether or not the action does in fact cause financial loss to the company concerned. No other facts enter into it, not social need, environmental, national interest, local laws, nothing -- only business interest. It's an abomination of a Treaty and needs to be rejected.

Losimpson:

26 Mar 2015 5:00:52pm

I never understand why governments persist in trying to create free trade agreements which go way beyond free trade. It's as though they think they will gain kudos from signing an agreement irrespective of what it says. The ISDS provisions in the TPP should be enough to have us abandon it completely.

Peter of Melbourne:

26 Mar 2015 5:15:55pm

government in this nation is formed by one of the two special interest political groups

whats not to understand? they have their own vested interests and have proven time and again to pursue those vested interests at any cost with the knowledge that the australian public is trapped with only those two choices when it comes to voting at the ballot box and forming a government after preferences have been taken into account.

this political system we have been saddled with was designed by the two major political parties with the express goal of their dominance never being broken

Phil:

26 Mar 2015 5:35:00pm

I believe governments persist because they are unremittingly obligated to the corporations that write the trade deals. This is the essence of the global disease of neoliberalism - it is rule by trans-national corporations through their proxies i.e sovereign governments.

Bram52:

carolinemaybe:

I was concerned about the Free Trade deals signed so swiftly after this Govt came to power. Mr Robb could not have been in a position to fully understand all of the implications. The TPP is the same.

No-one seems to have asked why the previous Govt hadn't signed off on them. They can pat themselves on the back for a job done but what have the corporations gained and what have we lost in all of this. Only bad things are written in shadow.

JoeTheLion:

26 Mar 2015 8:33:31pm

To me, it's problematic that an FTA is like a feather in the cap for the current government. They should all be considered on their merits and approached with caution. Once you start running around blaring about how you're definitely going to sign a bunch of trade agreements you've given your hand away. I wonder how much we'll end up sacrificing for a partisan political win.

Bullfrog:

27 Mar 2015 7:57:42am

Losimpson,

One of the reasons free trade agreements tend to drift away from pure tariff / legal / similar barriers is that after a few decades of largely already removing such barriers, there is little left to offer except the 'other'. Not that I agree with the sentiment, but that's the negotiating position.

magb1:

GreyBags:

26 Mar 2015 5:06:41pm

It is strange that certain right wingers are aggressive towards what they consider a 'socialist one world government' when they complain about UN human rights clauses and other aspects of world affairs but will happily sell out the democratic rights of people to unaccountable international courts of commerce that have no appeals process.

Rudd and Gillard were right not to agree to the inclusion of ISDS provisions in negotiations for the TPP. It is disgusting that the organisers of the TPP tried to keep the whole process secret from the general population but actively invited numbers of trans-national corporations to the table to assist in writing the provisions. Your average Fascist government uses those sort of tactics.

Abbott will probably sign up because he is so desperate for any sort of 'win' he can trumpet that he would sign away our sovereign rights and then boast about it later. The only economic modelling that I have seen in regards to the TPP shows a zero sum gain for Australia yet we heard the Trade Minister the other day bandying about numbers in the billions as some supposed benefit of the agreement while no one could 'officially' check up to see if he was telling the truth.

The whole agreement must be fully scrutinised in the public gaze by independent and Treasury experts before anything is signed otherwise it will basically be a corruption of our legal standing for the benefit of multi-national corporations.

magb1:

R Supwood:

26 Mar 2015 5:27:20pm

It's good to see people all over the spectrum seeing that a free trade agreement done secretively by incompetent careerists is basically faulty. Openness, as heroically delivered by wikileaks, is short in supply from the devious and inadequate government we have for now. The notorious yankee position is to get a bit in (what, you want me to swallow what?) and intrusively get more than they give. Ask the Canadians and others about past deals. We are about to give away sovereignty, jobs, control and rights in nearly every deal with biggies, just as we tend to screw little Pacific neighbours. It's jungle bullying, in layers and strata; we will be losers in a deal with the USA, always.

John 13:

26 Mar 2015 5:41:22pm

It also should be appreciated that Australia is a relatively small bit player in the process in setting up the TPP and would remain so in it's application should we be party to it. As the terms to the TPP are dribbling out it appears that any positives for Australia will be totally outweighed by the negatives. Where will all the thousands of new jobs (according to T A) be created. They would certainly not be found in any extra mining activity or in broad acre agriculture. How many extra jobs will be needed in ports unloading shipping containers of junk or in the downstream $2.00 style shops ?

Alternatvue:

26 Mar 2015 5:43:55pm

Somewhere in very complex matters, there is The Underlying Idea. This idea is then buttressed by The Architecture of the construct that will deliver the idea into a particular expression in Reality and this quintessence and anatomy are filled out by the Organs and Processes that deliver its functional capabilities.

In every case, all these, but especially the Underlying Idea and the Intent of the Architecture, have to be tested against quite independent principles of wisdom. In this process, Ulterior Motives and Potential Misuses need to be carefully considered.

Politics and economics have elements of contained wisdom but conventional practices act to marginalise them. These 'ics' are simplistic pragmatics as a result.

The mindsets that drive TPP type projects may have different ideas of why they pursue them, but all of them consider what they think are their advantages.

What really worries me is that everyone is trying to shore up advantages in an Idea-Architecture-Organics-Processes construct that fails the tests of wisdom, I think.

We are intent on politicising and legalising things that should be open and transparent. That's what we should be afraid of - institutionalising (and in hugely expensive institutions to test) things that should be free to call the behaviours of international actors to account against the standards of wisdom.

Apart from anything else, such ways reduce the capacity of people to regulate the behaviours of their own polities.

I cannot see how all this is directed to the reasonable happiness of the greatest possible number and, really, isn't that what we should base our best behaviours on?

Gordon:

26 Mar 2015 7:17:30pm

OK, I'll have bash. I'll give you the underlying vision, and you tell me why it's unwise - if that's what you really think.

When two people work to create stuff, and then trade some by agreement, two things happen. First the net happiness of the world increases - two people get what they want- enough of their own stuff, and some other stuff. Second the net wealth of the world has increased by the creativity & labour of two people working on some raw material of lower value.

Thus a free trade has increased both net wealth and net happiness. Two out of two for 100% of the people in the system. If that is not the greatest good for the greatest number I really don't know what is.

The freer and more open the trade, the greater the rise in net happiness. The greater the happiness, the harder the trader will work to create wealth to trade and bring it on.

Why on earth would you not wish to encourage such arrangements? This, is the underlying principle of free trade agreements. Over to you for the other big-word stuff.

JoeTheLion:

26 Mar 2015 8:49:21pm

You could construct an almost as appealing sounding simplification of communism and it would sound like a terrific system in which we can all prosper. Unfortunately people get in the way unless there are strong checks and balances to prevent socialism or capitalism getting out of control.

I'd like someone to explain why the Scandinavian model wouldn't work here, or why it is not a system that we should seriously aspire to. They seem to have struck the balance and have harmoniously prospered.

bobtonnor:

26 Mar 2015 9:23:24pm

you fail to put two aspects into your equation, the raw materials, obviously as they are used up the become rarer and thus mores expensive, and secondly, and arguably more importantly, studies of the pursuit of 'stuff' has time and time again shown that once past a certain point the acquisition of 'stuff' has not shown to increase happiness, in fact after a certain point it has the reverse effect. What does happen though is the degradation of the environment, sorry 'our only' environment. Its not just a win, win Gordon.

GreyBags:

26 Mar 2015 9:52:35pm

I see an acolyte of the Cult of The Invisible Hand has the magic formula off by heart.

When your whole system is designed around a complete falsehood, that being that everyone is 'selfish and rational' (when Blind Freddy can give you endless examples of people who aren't) then your system is bound to fail. Perhaps even be abused by a lot of rich and powerful people who are greedy and irrational.

A trans-national conglomerate of companies that resides in multiple tax free havens is not dealing in a 'free market' with an individual person. They have a massive advantage over that person. Not only do they wield more power and influence they have zero responsibility to act ethically, in fact the opposite if it makes money but also are legally limited in their liabilities.

Your 'free markets' are right wing utopian fantasies. The reason the hand is invisible is because it doesn't exist. The hand up the back of the politicians signs corporate cheques to keep them in power. Follow the money.

Gordon:

27 Mar 2015 12:06:48pm

Of course it doesn't exist. it's a metaphor. Metaphors are...metaphorical. There is a difference between an environment of free trade and an environment without regulation. Equality before the Law, prevention of cartels and insider trading, all of these are necessary. Humans like to build cushy delays for themselves and there are plenty of anti competitive forces from what you would call the right that need to be resisted just as fiercely as any from anywhere else. There are people who would extend the free trade idea to a zero regulation environment. I think they are just as foolish as you probably do, and as foolish as the anarchist end of the left spectrum.

GreyBags:

As soon as you have right wing politicians writing regulations they do so to advantage those that are already rich and powerful because they are either wealthy themselves or they are wealth groupies.

'Free trade' is a lie. It is just code for less regulation on corporations so they can rape and pillage without government interference. ISDS provisions will even arm them to rape and pillage existing government safeguards.

The constant cry from the right is to get rid of safeguards, or at least the ones they don't like. They go on about getting rid of 'red' and 'green' tape that actually protects individuals and the environment. Yet despite all this hatred of 'red tape' they had a royal commission into the lack of red tape with Labor's insulation program. They are hypocrites who can not be trusted.

Gordon:

27 Mar 2015 1:23:26pm

It's an ideal - like free speech and free people and democracy. Just because there are very imperfect examples around doesn't render the principle "a lie". No court renders perfect justice - is justice "a lie" too?

The original commenter wondered what the simple object of the exercise was and I supplied it in its most simplistic form. Of course there are complexities ...trade deals run to zillions of pages. Most of those will be people holding out for reasonable protection here and reasonable protections there - none of which I have a problem with. But if someone asks why, fundamentally, are we doing this - that was the answer.

Do you feel that trade should be rendered unfree as a matter of basic principle? how? slavery? fixed prices? Surely we can agree that the exercise of free choice is worth protecting. Why is what you buy and sell & to whom and for how much somehow different?

graazt:

27 Mar 2015 2:44:24pm

That's the purpose of free trade, which doesn't seem to be causing concerns for anyone. The only exercise in free trade that seems to be off-limits is stopping foreigners from competing in our job markets when they haven't got the necessary paper-work.

This investor/state dispute business has an entirely different purpose though. Which is to make citizens liable for the multinationals' sovereign risk profile. In other words privileging those entities to profit in a lower-risk environment (for presumably the same returns).

That may well be legitimate, if we value investor certainty over our current right to enacting laws without such financial consequence.

But, if we were to go down that road, then sovereign entities (and individuals) should also have that right within their own nations. They broadly do in the USA, but they don't here.

If they had, there'd have been a class action lawsuit against the NSW Libs for restricting trading hours in Kings X (for example).

Anything else is ironically providing a competitive advantage to multinationals over those businesses that invest natively. That a foreign firm investing here will do so with lower risk than an Australian one that does.

VacillatingAmbivalence:

27 Mar 2015 1:49:23am

The big words I agree dont help at all, but you seem to have simplified the issue a bit.. The TTP wont be between just two counties and thus there is potential for trade between two countries to be severely disrupted by the actions of a third all in the guise of free trade. Thus net happiness could actually drop (if there was any way of measuring the relative happiness between peoples).

Paco:

That should do it.No special clauses or my farmers are special and need a smidgen of protection under some circumstances.No my special interests groups need to make lots of profits at the expense of your citizens.

There will never be true "free trade", corporations don't want free trade, they want protection.

Gordon:

R Supwood:

27 Mar 2015 9:46:28am

Playschool economics will not do. All trade agreements are based on excesses, dumping, obsolescences, overstocked and overproduced goods, gluts. All the evil components of deals, cartels, monopolies, monopsonies, market fixing, price rigging, hidden subsidies are there. We will lose jobs, control, status, communities even, as in dairy and sugar, grapes and other fruits. It's a sell off and sell out, all so some turd like Robb can retire and become a lobbyist for foreigners, as have all recent national party leaders. Poo.

Alternatvue:

27 Mar 2015 4:04:13pm

In complex social constructs THE major part of all their underlying ideas is to do with WHO: which WHO is beneficiary of the of the assembly of less basic ideas that tailor the construction. WHO - I, some specific WE, or ALL OF US - is to benefit from the construct to be esatblished?

Only Gordon responded to my post, and half a dozen people responded to him but between them they demonstrated some of what, I think anyway, are the failings in our ways of going. bobtonner made significant points but the others already had versions of an answer that satisfied them, though they had to phrase the question to suit their presumptions.

I had small hopes that people might try to isolate the true Underlying Idea around which their individual constructs of things like society, the objects of society, politics, economics and law, draped their 'morphologies' (apologies to VacillatingAmbivalence who thought I used big words!).

For almost everyone, greater happiness involves the genuine acceptance and regard of a larger circle of people. Individuals can 'improve' themselves just so much in isolation but the higher possibilities of self depend on one's access to the acceptance and regard of a Circle. The qualities of its members, and the qualities of its processes and endowments, will permit Circles to be greater or lesser things and the Circles of Circles and so on.

It seems self evident then that the Underlying idea of all good social constructs should include something like: to promote the capacities for happiness of individuals and their circles in the behaviours consistent with the general happiness.

We found our 'social' constructs in selfishness which is the essence of anti-sociability - and our recorded histories everywhere and presently evidence the catastrophes of that choice. 'Politics' is the arts of trying to win in the malignant environment that general selfishness promotes.

Gordon wrote on a version of 'free trade' and happiness. If we wanted to apply the exchange of valuable requisites to the maximisation of the general happiness, why would we put the barriers of capacity-to-pay in our way? Why would we invent such an Economics?

From a small community to the global population, converting the potential of people to enhance their own and others scope for happiness to an opportunity for venal profit that Power is measured by is the daily obsession of hordes of people who have lost touch with all good underlying ideas.

raywa:

26 Mar 2015 6:20:56pm

Secrecy hides hidden agendas. One of which could well be some type of insider trading, with the information of which corporation`s will benefit the most from this TPP and the distribution of such information to a select few. Corruption at the top level.Whilst us plebs are force fed misinformation about the benefit`s for Australia.

maelcolium:

26 Mar 2015 6:54:20pm

There's no urgency on Australia's part to sign this thing. It's been rattling around for years. On the US side though, there is a degree of urgency as Uncle Sam tries to head of those sneaky Chinese who are making noises about opening up their markets. If we were half smart we would let the negotiations play out without being too keen to strike a deal because a better one might be waiting around the corner. Of course the bunch of dills in Canberra will be busting their backsides to get another one up on the opposition, so sensible negotiations are probably not going to happen.Reading the blogs thus far it would seem that most posters are keen to see the devil in the detail before we let the adults pick up a pen and I don't see a problem with that at all. Being a lazy sausage, I'm waiting for GetUp to send me a prepared bit of blurb that I can edit and send to my local member whom I suspect is starting to block my emails. What with the RSPCA, CSG, Live Trade, Fairy Possum and all the other online demonstrations, I'm starting to relive my activist days.

bassmanbob:

26 Mar 2015 7:21:10pm

And the libs have told us that they are the best party to manage the economy and they know what they are doing. If they agree to this they should be charged with selling our country to the multinationals of the world and destroying our economic base.

Living in a cloud castle:

27 Mar 2015 7:38:10am

I have no problem with the general idea of TPP. Australia's experience is clear, in that open trade benefits the recipient country ( ie Austrlia), not just the exporter.

ISDS is, however, a mechanism for corporatist control over government decisions. Oh, you can't impose those extra environmental obligations now, even though we have found a new toxic chemical being emitted, or we will sue you.

A requirement for proper compensation in the case of expropriation is fair. But any non-discriminatory regulation, well, no dice. We would be objectively mad to agree to anything of the sort. Especially when carbon trading and constraint is just around the corner.

Do we want to be sued by coal miners when we start taxing them and shutting them down?

ISDS is abject madness for Australia, unless it excludes healthcare and environmental regulation, WHS, and a string other areas at a bare minimum.

Nova4avr:

27 Mar 2015 8:29:39am

The TPP is essentially a move set up by US companies & the US Govt. to supposedly free up trade within the Pacific region.

To even consider that a company should have legal rights over the sovereign rights of a whole country is complete madness. This could expose us to huge compensation payments over something that we actually had to do to stop a company from damaging our environment or something similar.

We currently have one such example with the plain packaging of tobacco & cigarettes, that if the TPP was in force we could be exposed to all sorts of compensation.

Reinhard:

27 Mar 2015 9:19:32am

Abbott & co are trying to sell the TPP and other FTAs as victories but they are nothing more than capitulation. Australia has been negotiating the TPP for a decade or more and one sticking point has always been ISDS provisions. Such provisions only ever favour the larger partner and after last year's budget and policy barnacle debacles Abbott is so desperate for any kind of victory that he could sign away our rights in exchange for a few favourable headlines.If the TPP will be so beneficial to Australia, why is it so shrouded in secrecy, and why will we only learn the fine detail of the agreement after it has been signed ?

Daniel:

27 Mar 2015 9:37:33am

What I don't understand is what Australia could possibly gain from allowing an ISDS clause? How could any free trade be so incredibly valuable that we would want to trade away our governments right to pass legislation? It just insane. I can't sue the government when they change laws to take my freedom away but somehow it's ok for a foreign company to be able to do so? It's just insane. And it should be treason to do so.

kenj:

27 Mar 2015 10:28:23am

In the recent Korea-Australia trade agreement the Koreans weren't even asking for any ISDS clause. The Americans insisted that Andrew Robb include it in order to give political weight for its inclusion in the TPP. We are being shafted and for no good reason. And Andrew Robb is not standing up for our rights on this.

kenj:

27 Mar 2015 10:51:41am

Chavire, Chief Justice French of the High Court delivered a detailed working paper on Investor-State Dispute Settlement at the Supreme and Federal Courts Judges' Conference in Darwin in July last year. The concerns raised by Justice French are consistent with those raised by the author of this article. We should not be accepting ISDS at all.

SuzyQ:

JeremyForScience:

27 Mar 2015 9:56:08am

As a small informal poll, this comment thread shows remarkable agreement between lefties, righties and the 'centre' that this agreement is a bad idea. Hopefully some politicians are reading this and we're not just shouting into the wind.I've seen strong arguments on this site for things I would consider 'no-brainers' so this lack of argument must mean that not signing is a special category of 'no-brainer'.

kenj:

27 Mar 2015 10:21:05am

I question whether Andrew Robb should even be negotiating the TPP and TiSA. He was CEO, Chairman and business adviser to Acxiom Australia from 1999 to 2004. This company -- which is so coy about itself that it doesn't even list its current directors on its website -- is a subsidiary of the US-based Acxiom company which collects hundreds of pieces of data on over 500 million people and provides it to corporations for marketing purposes, and to US intelligence agencies -- your buying, shopping, ethnic, religious, gender, age and (where possible) Facebook, credit, travel, and medical, details -- everything they can lay their hands on. It will tell you, if you ask, what it has on you, but only the basics. And it certainly has no policy of deleting its records on you or refraining from gathering that information and selling it to others.

The insistence from the US negotiators in both TiSA and the TPP is for the unrestrained export of data from participating countries, significantly limiting Australia's ability to protect the personal data and privacy of Australian citizens.

We are being asked to trust these corporations to handle our personal data... collected without our permission ... which they refuse to reveal in full ... or ever expunge.

We can certainly guarantee under the Trade in Services Agreement (TiSA) and TPP currently being negotiated that personal data collected in this country will be exported everywhere in complete defeat of our privacy laws because those who stand to profit have Axciom-Man, Andrew Robb, heading up the negotiations.

How can it be expected that this man will stand up to protect Australia's interests on this issue? Why hasn't he recused himself?

WaitWot:

27 Mar 2015 10:55:12am

I'm probably living in fantasy land here but here goes anyway...

I can see no other eventual outcome other than the TPP being signed and passed through the senate (my guess here is 1 or 2 of the right pollies will be smoozed enough with promises from Corporation A, B & C to guarantee this will be the final outcome).

But what about our contract? I mean the contract between the Australian people and the Australian Government, whereby we, the legal citizens of Australia made a contract (ie. elected representation) with the government to serve us and our best interests? Surely this contract takes precedence over any other future agreements? If the government fails to act in our best interest (like signing away sovereignty) does that not breach the contract they have with the Australian people?

I'm hoping when the sh*t does hit the fan with the TPP that some smart and benevolent lawyer has read this and can use it as a basis to challenge the validity of the TPP

Headscratcher:

27 Mar 2015 11:00:11am

Fast Track.

Just too clear up what these simple words mean.Fast Track in this case doesn't mean to do things quickly.It means to pass the whole agreement as one entity without dividing parts of it up to be considered as separate pieces.The cornerstone of the whole agreement is the ISDS provision and it's target is regulatory.

blax5:

27 Mar 2015 11:45:52am

My thanks also to wikileaks. If anyone had told those people on the communist side of my former hometown, Berlin, that they would be fighting for freedom of democracy only to be forced to submit legislative powers to global corporations they would have never believed it. They might have even joined the communist party because there'd be a bit more influence on the body politic than under legislation shoehorned in by corporations.

Despite all the resistance here, in Europe, and in the US (John Birch Society among them) we may not be able to fend off the TTIP/TPP network. They have been trying to force this through since 1993 (see Claire Sterling's book 'Crime without Borders' where it is mentioned as an anti-organised crime effort, despite not having the names we know now).

One ray of hope would be Grexit or Britain leaving the EU because it ruptures the chain.

Last not least, I am spooked by the idea that this an agreement to get into, but no way out is mentioned in case we consider the results not satisfactory.

ArtyFact:

27 Mar 2015 3:08:51pm

Our current Fed government can't be trusted to run our economy so how can they be trusted to get the best deal for Australia with this TPP.You can bet your bottom dollar they will bow down to US pressure and sell us out but then again, what's new.

Brian:

27 Mar 2015 5:09:42pm

ISDS are simply incompatible with the very purpose of democratic government, to make decisions in the national interest. It is utterly absurd that the government is even considering trading its right to govern. If they don't understand this most basic fact of their role, they don't deserve to govern.

The Government's planned $37 billion in surpluses over the next few years rely on a lot of pretty optimistic assumptions, but its promise to hand back more than $9 billion through yet-to-be-announced policies will be baked in.

The Morrison Government is going over the top in trying to smother Bill Shorten and the Labor national conference, but at the end of day one, the Government was looking desperate while the Opposition was looking determined.